ML20137S954
| ML20137S954 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 04/05/1999 |
| From: | Norway R AFFILIATION NOT ASSIGNED |
| To: | Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML20137S942 | List: |
| References | |
| 2.206, NUDOCS 9906110170 | |
| Download: ML20137S954 (26) | |
Text
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8:
f April 5,1999 Mr. William D. Travers Executive Director for Operations U.S. Nuclear Regulatory Commission
- Washington D,C. 20555-0001 -
Re: PETITION PURSUANT TO 10 CFR 2.206, NINE MILE POINT NUCLEAR UNIT 1 & 2, L DOCKET NO. 50-220; 50-410.
Dear Mr. Travers:
As former member of the Niagara Mohawk Power Corporation's (NMPC) Nine Mile Point Unit 2 Independent Safety Engineering Group (ISEG), I had been discriminated against in Violation of 10 CFR 50.7, This has been proven before an Administrative Law Judge (ALJ) in Discrimination Case 95-ERA-005 and had resulted in a 1996 Severity Level 11 Violation by the Nuclear Regulatoiy Commission against the Niagara Mohawk Power Corporation. NMPC did not appeal )
the decision made by the Administrative Law Judge and the contents of our settlement agreement in the Discrimination Case and the ALJ's findings had been affirmed by the United States -
Secretary of Labor. -
This petition is not intended to address that proven case of discrimination. The basics of this L petition is to address the deliberate violation of NRC Regulations and potential criminal violation of federal laws on the part of senior nuclear and corporate managers of the Niagara Mohawk Power Corporation and the deliberate violation ofNRC Regulations and potential criminal
- violation of federal laws and/or extreme negligence on the part of members of the Nuclear Regulatory Commission. The combined actions of the Niagara Mohawk Power Corporation and j
. the Nuclear Regulatory Commission resulted in the placemem of a confidential and fraudulent i employee evaluation along with a fraudulent listing of the fmdings of the Administrative Law i Judge in Discrimination Case 95-ERA-005 and confidential information pertaining to my work Jperformance into public record (into the Public Document Room).
Since the actions taken by the Niagara Mohawk Power Corporation and the Nuclear Regulatory
~
- Commission was performed to permanently destroy my credibility within the Nuclear Industry and
- was involved with 'my original discrimination complaint, it constitutes a additional n'ct of discriminmion in Violation of 10 CFR 50.7l- Since the actions taken by NMPC and the NRC to fraudulently document NMPC's position in my discrimination case does contain ' provisions' that destroys my credibility within the Nuclear Industry, which would " restrict or otherwise
. discourage" my employr~nt within the Nuclear Industry, it is also in direct Violation of 10 CFR 50.7.(f).
The above actions may be directly connected to my continued efforts to address my original ;
NMP2 RHR Ahernate Shutdown Cooling Safety Concern by my questioning of the credibility of '
the NMP2 Safety Evaluation 94-091 and its conclusion that the alternate ASC did not need to meet the' requirements ofRG 1.139 to perform its intended safcty function within 36 hours4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br /> (even 9906110170 990609 4
- CF: ADOCK 05000220 CF 2 L
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k' Ptma runsunn To 1o da 2.206, NME MLf POWT HuClfAR UNU 1 & 2 DOCMET NO,50 220,5(L410 l
- Pep 2 . Apra5,t999 l
though it was a licensed coramitment in the NMP2 UFSAR) solely on ti.4 basis that this RO- 3 l requirement is listed as a 'should' and not a 'shall', and that they had an (54 Hr) method avsilable.
- I had also questioned the cr~ edibility of the ccrresponding NRC inspection Repon 50-220/97-04
& 50-410/97-04 (pg. 8) several times and the NRC refuses to give a response to this issue.
- PETITION .-
I submit this petition pursuant to 10 CFR 2,206 requesting the to take immediate action to issue a Show Cause Order or Civil Penalty against the Niagara Mohawk Power Corporation and it's senior nuclear and corporate management (Enforcement Sanctions) for 1) submitting a altered employee record, under fraudulent pretences, to the Nuclear Regulatory Commission on May 10 -
1996 and 2) for their actions for placing confidential and fraudulent statements pertaining to my
-. work performance, a false written record of what the Administrative Law Judge had determined in Discrimination Case 95.-ERA-005 and the confidential and fraudulent 1994 employee evaluation (which the Administrative Law Judge had found to be altered) into federal custody and -
into public record. . These actions are in clear Violation of 10 CFR 2.790.(a). and 10 CFR 50.9, Specifically by 'being involved', ' participated in', 'had-knowledge-of' or ' allowing' the following to be submitted to the NRC during the Enforcement Conference under false pretences and perjury and in violation ofNRC regulations and potential criminal violation of federal laws:
- 1) Placing documentation pertaining to confidential and unproven allegations of my pnor (1993)
. work performance that is based upon ' secret' employee records (that I wasn't even allowed to see and that had no bearing on the 1994 termination) into federal custody and into public record,4
- 2) Placing documentation into federal custody and into public record pertaining to confidential -
and false allegations of my 1994 work perfonnance and my 1994 termination, 'witleut accurately documenting the findings made by the Administrative Law Judge upon those
/ allegations', .
- 3) Placing fraudulent statements pertaining to what the Administrative Law Judge had determined
'in Discrimination Case 95-ERA-005 (and what was affirmed by the Secretary ofLabor) into -
_ public record. SpciSally the contents of the Handout page entitled ' Findings of the Administrative Law Judge'.
- 4) Placing the confidential and fraudulent 1994 employee document (my 1994 Rightsizing record) into federal custody and u.to public record as ifit was an authentic document Especially since the Administrative Law Judge had found that this record was of no value, conflicted with outer -
evidence and ' altered' without my former supervisor's knowledge and this find"g had never been appealed and it' had been affirmed by the Secretary of Labor. NMPC has no legal basis for
- placing this record into the PDR. In addition, this is especially significant since this employee -
i evaluation is different from the copy that was submitted to the Administrative Law Judge in 1994.
- The fraudulent documentation is !ocated in the NMPC Docketed "Q" file in Inspection Report 50-
- _ = - . - . . - - _
v'] =
E PETm0N PURSUANT 7010 CFR 2.206, MNE Md POWT NUCMAA UMT 1 G 2,00CNET NO. 50 220,5o.410
- Pay 3 April 5, t999 -
220/96-06 50-410/96-06 and'is located at PDR fdm location 89130r 156 to 254. My ' Secret',
^
- ' Confidential' and ' fraudulent'_ employee evaluation in at fdm location 254. The difference between the 1994 proceeding evaluation and the 1996 Enforcement Conference is significant and virtually impossible, except by a deliberate act of falsification.L The former Manager of the ISEG group's name had apparently fallen off the Manager (line) in the 1996 copy.
- I submit this petitio_n pursuant to_10 CFR 2.206 requesting the staff to take immediate action and issue a Show Cause Order or Civil Penalty against the Niagara Mohawk Power Corporation and it's senior nuclear and corporate management (Enforcement Sanctions) for Discrimination in Violation of 10 CFR 50.7,10 CFR 2.790 and 10 CFR 50.7.(f) for their actions of'being
- involved', ' participated in', 'had-knowledge-of' or ' allowing' confidential, false and fraudulent documentation that is disparaging, deleterious and damaging to my goodwill, integrity and reputation to be placed into permanent public record.
Significance of these issues These issues are extremely significant because they constitute deh> rate violation of NRC Regulations _and potential criminal violation of federal laws. These acti.ns could have only been performed by the combined efforts of the senior management team of a licensed nuclear power station along with corporate oversight, while under legal counsel (i.e. a organized criminal ,
conspiracy). And for what? To minimize the financial responsibility due to an unlawful termination and to minimize personal accountability due to the termination? !
The real significance of these actions are not concemed with this discrimination case alone, but what actions would these same individuals take pertaining to a significant safety issue, which
- would have the potential to cost millions of dollars or possibly shut down the station. Once it is
proven that an individual can not be trusted to obey federal laws and NRC regulations, they have no right to_ work within the nuclear industry. And these acts had been committed by several high ranking nuclear managers.
These issues could also only have been accomplished due to either the deliberate misconduct or
- extreme negligence on the part ofmembers of the Nuclear Regulatory Commission. The Nuclear
. Regulatory Commission ignored my complaints pertaining to the alleged falsification of that 1994 Rightsizing document and ignored the findings of the Administrative Lew Judge that this record
- had been altered without my former supervisor _'s knowledge or consent. - The NRC had never even interviewed the fonner manager of the Independent Safety Engineering Group prior to their
, decision of Enforcement Actions in this discrimination case.
The final result was that the senior and corporate managers of a licensed Nuclear Power Plant lied
< to the PUBLIC pertaining to'a Regulatory Affairs of a LICENSED NUCLEAR POWER r STATION by placing confidential, false and fraudulent documentation into public record in Violation ofNRC Regulations. If this could happen in this~ discrimination case, it could happen on issues pertaining to NUCLEAR SAFETY. - Regulatory is warranted until all personnel that was
' involved', participated in', 'had knowledge of' or ' allowed' the falsification this 1994 employee record, the presentation of fraudulent records into federal custody and the placement of - '
1 L.
i . 2 1 _ _
Ptim0N Punsumi To 10 CM 2.206, NWHsLE POWT NULUM UNIT 1 & 2, DOCET NO. $0 220,50-410
- Pep 4 - Apnl5,ises i confidential, false and inaccurate documents into public record are identified, In addition, since this_ issue had been identified by the ' victim' of Discrimination and not by the licensee or members of the Nuclear Regulatory Commission, it must be assumed that these same individuals could have made other fraudulent and/or falsified ' licensed' submittals to' the Nuclear l Regulatory Commission. Therefore all docketed files associated with the involved licensee personnel need to be confirmed to be truthful and forthright.
These issues are also significant since the same type of' secret' employee evaluation that contains inaccurate downsizing numbers, altered and presented into federal custody in my discrimination case was used to terminate hundreds of employees from Nine Mile Point during NMPC 1993 and
-1994 Downsizing Process.- NMPC's handout did state that it was " Common for Board to conclude differently than supervisors". If the NMPC Senior Management Board had developed or tampered with other downsizing documentation the same way that my downsizing records were treated, there could be hundreds of other discrimination cases successfully coveral-up.
Background
LNiagara Mohawk Power Corporation's sedor nuclear management are responsible for submitting a Employee Record, a 1994 Rightsizing Document to a Administrative Law Judge, Gerald M.
Tierney in the 1994 Discrimination Proceeding 95-ERA-005 In addition this same Rightsizing document had been submitted to the EEOC (Charge No.165940564) and previously submitted to the NRC.= The same record had been submitted by NMPC personnel to the NRC during the May 101996 Enforcement Conference. However, there is one major difference in the 1996 record,
' The record submitted to the NRC in 1996 did not contain the former Manager of the Independent Safety Engineering Group's name on the line of Manager, The prior :,ubmittals in 1994 to the DOL, EEOC, NRC and to the ALJ all contained my former supervisor's name on the Manager's
. line.
Considering that my authentic 1994 Rightsizing document could not exist in both conditions,
'with and without' my former supervisor's name on the Manager's section, the existence of 7 different copies ofthe document in 1996 provides absolute proof that this document had bem ahered without my former supervisor's knowledge or consent. The existence of this recora in -
- 1996 also provides absolute proof that the former Manager of the Independent Safety Engineering Group's name was ' forged' onto this document without his knowledge or consent (in the prior -
'1994' submittals) at some point in time. This is significant because the former Manager of the Independent Safety Engia-ins Group was blamed by NMPC senior managers for creating this
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s record during the NMPC 1994 Downsizing process and lying about my downsizing ranking during that downsizing process in.any case. NMPC h=A no laa=1 rinht to plam a diferent amnlovee ramrd than what was entered into evidence before a Administrative Law Judea in Discrunination Case 95-ERA-005 into federal custody and into nublic record.
' Since the Administrative Law Judge had found that this 1994 Rightsizing Document was of'no
! value', that it conflicted with other credible evidence, that it was in 'different handwriting' and i- = that there was 'no indication that this document was communicated to the Complainant or to his i
a-
PETITION PURSUANT TO 10 CFR 2.206, N!NE Md POINT NUCHAR Unit 1 & 2, DOCKET NO. 50 220,50 410 Page5 April 5,1999 immediate superviscr', it is a violation of NRC Regulations and a criminal violation of federal laws to submit this record as an authentic document. This fraudulent record had been submitted to the NRC as an authentic record aad is currently located in public records in the Public Record Room (PDR), The AU had indicated within his findings that the intent of the Rightsizing record was changed from 'ISEG ROTATION' to 'being considered on the 40% list' and this alteration was in 'different handwriting' without the knowledge or consent of my former supenisor, NMPC representatives could not submit this document to the NRC on May 101996, without an specific objection to the AU finding. At no time during the May 101996 Enfsement l Conference (as indicated by the transcript and the NMPC Handout) did any NMPL l representatives object to the findings of the AU pertaining that this record had been altered without my former supervisor's knowledge or consent. This document was submitted to the NRC by NMPC representatives under the pretense that it was solely created by my former supenisor and deceived the NRC in regards to the AU findings pertaining to its credibility Because the Administrative Law Judge. had found that this 1994 employee evaluation had been altered without th- responsible individual's knowledgear consent and that this finding had never been disonted or appealed. NMPC had no legal right to place this document into public record.
It is especially significant that my 1994 performance evaluation was placed into public record since NMPC's 1994 downsizing program had kept this evaluation a ' secret' from me. In this case NMPC took a ' altered', ' personnel' and ' confidential' employee record, that they had developed and maintained a secret from their own employee, and place them into public record. Both the NRC and NMPC also had kept the fact that this record had been placed into the PDR a ' secret' from me Qis is a cl. car and BLATANT Violation of 10 CFR 2.790.. committed by both the NRC and NMPC.
The handout submitted to the NRC during the 1994 Enforcement Conference contained a page titled " Findings of the Administrative Law Judge" that contained specific statements that are fraudulent presented as being part of the Administrative Law Judge's (AU) findings. These statements were admitted by NMPC representatives (as indicated in the transcripts from the conference as being NMPC opinion of where the AU had made an error in his findings) and a e not the AU's documented findings. This document was submitted to the NRC with the full knowledge that it would be made a public document and placed into the Public Document Room (PDR).
The submittal of these fraudulent records to the NRC for placement into public record constitutes a deliberate act intended to destroy my credibility within the nuclear induste Carl Terry. Ralph Silvia and Richard Abbott are personally responsible for submitting this fraudulent written record to the NRC. in violation of 10 CFR 50.9. and failing to comply with the reauirements of 10 CFR 2.790 by allowing it to be olaced into oublic record.
As a member of the Nine Mile Point Independent Safety Engineering Group (ISEG), I was not identified under the NMPC 1994 downsizing process for termination. I had been selected, along with another NMPC ISEG (nuclear safety) engineer to be included in a new training program L
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V'8 : PETITION POR$UANT TO 10 CFR 2.206, NINE Mid POINT NUCMAR Unit 1 & 2. DOCNET NO. 50 220, 50410
, P., s - Apra s, me l a
L called 'lSEG_ ROTATION' Under this program, I had been rotated into the transition group l
' presented this '_ secret' employee record, a Rightsinng Form, that they claimed to show that I was .
- on their 40% list (and therefore subject to termination by downsinng) this record was determined l
t to be orno value and altered by the AU, The reasons behind the AU fmdings are irrefutable. = This rightsizing form did contain a statement that placed me on the 40% iist. However, this statement was found by the AU to be in different handwriting than the originator (assumed to be the former Manager oflSEG) and inconsistent :
- with all testimony.7The rightsinng form also conflicted with other credible evidence such as a
- letter signed by Mr. B.- Ralph Silvia, the former NMPC chief nuclear officer, that clearly stated :
. that I was not on the 40% list, that I was being terminated under this ISEG ROTATION program and that my downsizing form indicated that my "imiusion in the group was due to the decision to :
rotate ISEG positions".
In addition, although not known by the AU, the downsizing nuncers are also inaccurate. This document contains downsinns numbers that are lower than what I had been entitled to under the downsizing process. In other words, the downsizing numbers themselves are fraudulent.
- Specifically, the RESULTS downsizing numbir is the average of the RESULTS section of the 1994 employee performance evaluation, and that the 3.0 RESULTS score shown on my downsizing record is less than the average of the RESULTS on my performance evaluation. 7 These numbers show that I had been cheated out of credit during the ISEO downsizing process that was under direct and personnel control by Carl Terry, the former VP of Nuclear Engineering.
However. it doMn't matter who is rennonsible for the creation of a danument that can*=in a F
&audulent calentm' inn. - What is imnortant is that NMPC senior anetaae man ==ars willfully claead
! a daenmant that thav knew contain fraudulent numbers into nublic record (and the NRC allowed this to occur even thouah thev were aware of the numbers were fr=adulantl Does the NRC also 1 allow documents based upon fraudulent calculations into public record on issues pertaining to
- safety? -
Although my downsizing record is marked as being 6 of 8, which NMPC claims is proof that my former supwvisor had placed me on the 40% list, this marking only represents the fact that my
. employee evaluation was the sixth employee evaluation form that my former supervisor had -
- created and is not a representation of my downsizing ranking. It is obvious that the direct control
- that Carl Terry, the former VP ofNuclear Engineering had over the step by step downsizing _
process and his misrepresentation of the downsizing process to my former supervisor was directly responsible for the enors that exists in the ISEG downsizing records. The direct cantrol that Carl Terry had over the ISEG aroun's downaidna racards raent'ad in &=ndulant and innamrate racards3 Therefore. NMPC pr-tad mv 1994 downaidan racard to the NRC at the Fnforcanant Conferanca nadar franXnlant oratane== lt also marks extreme negligence on the
- part of the NRC for failine to discuss the origin of this employee, record with my former -
supervisor.
11t i.s obvious that my 1994 Rightaizing record that was presented to the NRC on May 101996 had been altered by the placement of the statement that I had been on the lower 40% list.- It is now 7 f y 43t ?-Tm 6-?& " 1+ W -.4 weg sp- 3 in- -fge% 1 1.-- s - gpp.g t- m w- -
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l PETITION PURSUANT TO 10(FR 2.206, NINE MILI POINT NUCllAR Unit 1 & 2,00CNET NO. 50 220[50-410 Pepe 7 April 5, t999 known that even my supervisor's name was placed on this record without his knowledge or ,
consent! These alterations can not be considered as part of the normal downsizing process, since
. there was no NMPC provisions that would allow'the alteration of this employee record. As such, J this constitutes a deliberate act of falsification and a Violation of 10 CFR 50.5.
5 Based upon the facts: 1) Finding of the Administrative Law Judge that this Rightsizing record had been altered,2) NMPC had 'not appealed or disputed this finding, and 3) NMPC did not object to #
this finding during the Enforcement Conference,4) there are discrepancies in the document's physical appearance and the downsizing numbers wntained on this employee record 5) the NOV
- was not denied and the fine was paid, a violation for the falsification of this record is warranted.
Personnel Enforcement Sanctions are also warranted for the responsible individuals. 4 Based upon the facts there can be no question that it is a direct and blatant Violation of NRC Regulations and potential crimination violation of federal laws to place a confidential, inaccurate
'and altered employee evaluation into public record. This is especially significant since a AU had already found that this document was of no value, conflicted with other evidence and was altered.
It is also significant since, it appears, that once documents are in public record there is no way to remove it or to identify who has seen it. Therefore a violation for the placement of this document
. into public record is warranted and personnel Enforcement Sanctions are also warranted for the
- responsible individuals. The placement of this downsizing record into public record was a '
deliberate act 3performed or allowed' by members of the NMPC senior management board that attended the May 101996 Enforcement Conference. They are all responsible and accountable for- *
, this crime.
And based upon the facts, it is a direct and blatant Violation of NRC Regulations and potential crimination violation ~of federal laws to place a false listing ofwhat the Administrative Law had
~ determined in Discrimination Case 95-ERA-005 along with confidential employee information
- that are based upon secret and unproven 1993 downsizing records, into public record. Therefore a i violation for the placement of this document into public record is warranted and personnel Enforcement Sanctions are also warranted for the responsible individucts.
Considering number of senior management personnel involved in this fraud that are still retained
' .within the NMPC senior nuclear management team and the fact that the removal of these personnel would subject these units to a dangerously low level of senior management oversight,-
? their removal shall be considered a direct Risk to Nuclear Safety at Nine Mile Point, It would -
also be considered a direct Risk to Nuclear Safety to retain personnel involved in the deliberate violation of NRC Regulations and in potential Criminal Violation of federal laws within a position of authority in a licensed activity. In addition, considering that NMPC had been represented by
= legal console (in Discrimination Case 95-ERA-005 and at the May 10_1996 Enforcement Conference) and monitored by NMPC at a corporate level, it is imperative that the staff takes
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. Jsufficient action to ensure Nuclear Safety at the Nine Mile Point Nuclear facility.
TRequestedhetions
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1
~9, iU ._.
_ PtTITION PUR$UANT 1010 CFR 2.206, NtNE MLE P0MT NUCLEAR UN T 1 & 2. DOCNET NO. 50-220, 50410
- Pepe s April 5,1999 Issue a Show Cause. Order or Civil Penalty against the Niagara Mohawk Power Corporation and -
it's senior nuclear and corporate management (Enforcement Sanctions) against, as a minimum, Ralph Silvia, Carl Terry and Richard Abbott for ' participated in', 'had knowledge-of' or -
' allowed' the falsification of this 1994 employee record (as indicated by the ALJ Findings) and/or
~
i its submittal, under fraudulent pretences, into federal custody on May 101996 and/or for placing it into public record in Violation of 10 CFR 50.9,10 CFR 2.790 and 10 CFR 50.5. The Nuclear Regulatory Commission shall forward these issues to the Department ofJustice for consideration .
ofcriminal prosecution. l Issue a Show Cause Order or Civil Penalty against the Niagara Mohcwk Power Corporation and Enforcement Sanctions against, as a minimum, Ralph Silvia, Carl Terry and Richard Abbott for . i
'panicipated in', 'had knowledge-of' or ' allowing' the presentation of a written document into federal custody that falsely lists their position in Discrimination case 95 ERA-005 as be'mg supported by the Administrative Law Judge and allowing it to become public record in Violation ,
of 10 CFR 50.9 and 10 CFR 2.790. And for 'panicipated in', 'had knowledge-of' or ' allowing' the placement of confidential employee information that constitutes an unwarranted invasion of
. personal privacy into public record in violation of 10 CFR 2.790. The Nuclear Regulatory
~
Commission will forward these issues to the Depanment ofJustice for consideration of criminal prosecution.
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Perform a review'and verification of all Niagara Mohawk Power Corporation's docketed files associated with the individuals that were ' involved-in', participated-in', 'had-knowledge-of' or
' allowed'. the [ improper alteration of this employee record, its submittal into federal custody under fraudulent pretences and into public record and the fraudulent written presentation of the -
Administrative Law Judge's findings in case 95-ERA-005] are completed by independent review.
The NRC will forward a complaint to the Office of the Inspectors General for an investigation of possible deliberate misconduct or negligence on the part of members of the NRC for failing to
' take proper action in this discrimination case, allowing NMPC representatives to place false and
- fraudulent documents in NRC custody and for allowing these documents to be placed into public record.
A' Independent Oversight Group shall be established to provide oversight of the Niagara Mohawk Power Corporation's Human Resources Department and Employee Concerns Program. This -
group will ensure that the Niagara Mohawk Power Corporation does not develop or maintain employee records that are a ' secret' and/or diff'e rent that what the employee is told. The group .
L will'also ensure that all prior ' secret' employee records'are forwarded to their correspondmg owners (current or former employee) and provide a media for resolving complaints of fraud The .
' group will also provide nuclear safety. oversight, spahuy, perform the job function of the _
Independent Safety Engineering Group for both Unit 1 & 2 and provide for the future verification 4 :(Nuclear Compliance and Independent Verification) of all licensee submittals to any federal agency and into NRC docketed files;
[
1 A public meeting shall be held to obtain public comment penaining personal accountability, discrimination, the placement of fraudulent documentation into public records and the w- y ,-i----ww +-y V s4- +- -sw-
- ~ - . ~ - - - . . , _ . . - . . . ~ . . . _ ~ - . _ . ~ . _ - . - . . . . . _ . - - . . . . _ . - .
i' s . .n ?
i s
, PLM10N PUR$UANT TO 10 CFR 2.206, NINE MLI POMT NUCLIAA UNIT 1 & 2, DOCNET NO. 50 220,50410 -
' Page 9 April 5,1999
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Lvulnerability of the NRC in being deceived by deliberate acts of misconduct in its regulatory
- affairs along with the findings of the Office of the Inspectors General in this discrimination case.
. The Nuclear Regulatory Commission will publicly post NMPC's NMP2 RIIR ASD Safety Evaluation 96-091 (along with its associated sections from IR 50-410/97-04, under SELECTED .
REPORTS on the internet) to make it available for public comment OR require NMPC 60 days to
- re-perform this' safety evaluation in order to thoroughly review and document this issue to the -
NMP2 Licensing' basis. . Ifit is NMPC's intention not-to-have any RHR alternate shutdown -
cooling methods available to meet the 36 hour4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br /> requirement specified in RG 1.139 ( i.e. not to
' meet this USAR/ Reg. Guide Licensing Basis Requirement), then NMPC shall follow the appropriate reonteorv procass to take an exception to this Reg. Guide licensing requirement, provide adequate engineering and safety evaluations (to demonstrate that all previously analyzed accidents limits are not exceeded) and Modify their License accordingly.
'All future hlacement of documentation into public record for th:s discrimination case 95 ERA-005 -
shall be in conformance with the ' Settlement Agreement' and the ' Findings of the Administrative
- Law Judge' (both of which was affirmed by the Secretary of Labor) and in compliance with the
[ NRC Enforcement Manual for Enforcement Conferences as it was amended by NUREG 1600.
Specifically, no future documentation will be placed into public recod pertaining to this
- discrin ination case without the complainant's knowledge and a written response on any submittal will be allowed as indicated by NUREG-1600.
Issue a Show Cause Order or Civil Penalty again<t the Niagara Mohawk Power Corporation and lit's senior nuclear and corporate management (Erforcement Sanctions) for Discrimination in .
Violation of 10 CFR 50.7 and 10 CFR 50.7.(f) for 'being-involved', 'panicipated-in', 'had-
- knowledge-of' or-' allowing' the placement of false and fraudulent documentation that is
. disparaging, deleterious and damaging to my goodwill, integrity and reputation into public record.
. Sincerely yours, ffj), f Robert T. Norway
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A1TACHMENTINDEX
- - Title -
1 Applicable Sections of10 CFR 2 . Section " Discussion and Findings" of the Administrative Law Judge Decision in 7iscrimination Case 95 ERA-005.
3 Letter from Ralph Silvia to R. Norway dated March 15,1994.
4- Partial May 101994 Enforcement Conference Handout. PDR File Location 89130; 1561o 254.'
5 1994 Employee Performance Evaluation as it was submitted to the ALJ.
6 Blowups ofManager's line ofboth the 1994 and 1996 employee evaluation.
L t
._ _ _ - - - - - . - . . _ -.-- . . . - . - . _ . - - - . ..- . - , . . - -.- - ~ _ .-
- - Attachment i 10 CFR Sections impscsed APPLICABILITY OF 10 CFR to PETITION '
Section b of 10 CFR 2.790 places the owner of the information rurr==ible for the contents Since this
' informauon is in NMPC docketed Ales, WS=Hy,50 220/50-410 V Ales, they are the owners and are neponsible for its contents The NRC primary vehicle to implemens this responsibility is to re-present the information slated to be put into public record back to the lic;nsee. This handout oss presented to NMPC as an anachmant to laspection Report 50 220/964; 50410/96 06 as an attachment along with another Enforcement Conference Handout on the NhG'l Blowout Panels NMPC had a pwiod of time to implement the provisions of 10 CFR 2,790.b to remow any and all unwarranted maarial.
1 Therefore, Niagara Mohawk Power Corporation is Adly .-+;{ - 7 and amannenhle for the information contained in public record in their V Ales. The only exception would be Gowinmes Raquired documentation such as he aa==>= a the laspection Report that s as wriaan by the NRC.
It is likely that NMPC had used their authority under the prmisions of 10 CPR 2.790.b. to remow Mr, Silvia's Marcli 1994 ISEO ROTATION ietter (evidence CXII) Aom pubhc disclasse.
Personnel and similar Ales, the disclosure of which would constitute a clearty unwanented invasion of personal privacy are prohibited Dom being placed into pubbe record Although NMPC did law the right to present personnel notes and Ales te the NRC, it disclosure on a Handout speciAcally intended to be .
placed isso public record is a Violation of 10 CFR 2,790.a.21 la addition section (b) contains: Whether the information has been held in con 5dence by its owner; whether the information is of a type cusionmuy held in con 8dence by its owner and whether the infonnation was transnised to and received by the Comn'ission in conSdence; whether the informauan is anilable in pubbc sources; and whether public disclosure of the information sought to be withheld is likely to cause anhmaastal harm to the competitive position of the owner of the information are regaremmes that were violated by the release of perannael information on the PDR The Nuclear Regulatory ra==ia-lon also has
--Wlhy in their failure to enforce these provimons.
A violation of 10 CFR 2.790. (b) is especially signi5 cant for my 1894 performance enluation since their 1994 downsizias program had kept this evaluation a ' secret' from sne. In this case NMPC took personnel record 'that they had denloped and maintained a secret from their own ,Ag' and place them into pubhc record Informahon that a r-mahle person could misinterpeia, (their discretion) as being inaccurate in any matenal way is a violation of 10 CFR 2.790.a.3, and 10 CFR 50.9. As such, the presentation of Niagara
! Mohawk Power Corporation's cornptaines pertaining to the Mmimeratin Law Judge's Findmss as being part of the Administrative Law Judge's Findings is a violanon of those aarena in addnion, since my 1994 Pusonnel Enlunhon had been found by the Mmimarratsw law Judge to be of no value, connicted with cr@'e evidence and altered ("in different handwriting" wahout Mr. Spadafort's -
knowledes), NMPC har p.mW 2 altered (or fatninarf) document into public record in Violation of 10 CFR s 50.9 and 10 CFR 2.79".
As per sections of 10 CFR 50.7.f since NMPC had takan action in siolation of 10 CFR 50,9 and 10 CFR 2,790 that places dar==*a*= dan that 'contain any provision which sculd prohibit, resenct, or otherwise di. courage an employee frenn participating in protected activity as deAnod in paragraph (a)(1) of this section", their accons constitute another Violation of 10 CFR 50.7 n
se W y- Yyr-
- m. - _ _ . _ _ .. _ _ _ - _ - - _ _ _ . _ -._. . _ -__. _ ._ ___ _ _..._ _
c, ,.
. Attachment 1:
10 CFR Sections impacted
. y.
' Applicable Sections of le CPR
- $1790 Publie '= ; . esemptions, requests for withholding.
(a) Subject to the podekes of paragmphs (b), (d), and (c) of this section, Anal NRC records and ~ I documents,(8) including but not limited to cornspondence to and from the NRC regareng the le==are, denial, amendment, transfer, remem31, moddication, suspension, revocation, or violation of a 1
- license, permit, or order, or regar&ng a rule making pramada subject to this part shall not, in the absence of a compelling reason for neaA-la=ne aner a balmacing of the imerests of the person or agency urging naadiaelosure and the public interest in disclosure, be exempt Dom &sclosme and will
= be made milable for laag=r6= and copying in the NRC Public Document Room, except for numers that me:
(3) Speci5cally exempted Aom discloswe by statute (5ther than 5 U.S.C.) 552(b), prodded that
' such statute (i) requires that the matters be withheld Dom the public in sud a mannar as to lem no
&scretion on the issue, or (ii) minhhas particular crikria for withholding or refers to particular twes or matters to be withheld. 'l (5) Interagency or intrangency memorandums or leuers which would not be availabic by law to a
. party other than an agency in litigmion with the Commissiun; (6) Peruanael and medical Ales and smular Ales, the disclosure of which would constitute a clearly unwarranted im asion of personal privacy;
, (7) Records or informahon compded for law enforcement purposes, but only to the extent that the pro & action of such law enforcement records or informanon.
(iii) Could reasonably be expected to constitute an unwurrunted imasion of personal pnvecy; i (bXI) A person who proposes that a dammant or a part be withheld in whole or part from public Arla=ne on the groand that k crummin< trade secrets or pivileged or con 8dential comme.cini or Anancial information shall submit an application for withholding accompanied by an amdevit which:
(ii) Contains a Adl sime====t of the reasons on the basis of which it is cl=in==f that the informauon should be withheld from pubhc &sclesure. Such statement shall address with -;+-5 dry the i considerations listed in pmagraph (bX4) of this section. In the case of an af5dsvit submined by a company, the amdavit shall be executed by an ofBeer or upper lewi management omcial who has
- been speciGcally delegated the function of reviewing the information sought to be withheld and .
authorized to apply for its withholding on behsif of the company; The amdsvit shall be cxocused by the owner of the information, even though the informahon sought to be withheld is sammenad to the
' ~
t'm==i==ia= by maashar person.1he apphcstion and amdmit shall be submitted at the time of Riias .
Lhe information sought to be withhekt The information sought to be withbeid shall be incorporated, as ihr as possibic, into a scperac paper, "!)c afBant may designate with appopnate markings -
information submined in the amdsvit as a trade secret or con 5denhal or privdeged commercial or -
Anancel infonnamon within the meaning of $9.17(aX4) of this chapter and such informanon shall be sutvect to duelosme only in accordance with the provisions of $9.19 of this chapter,
' (3) The Commission shall determine whethe information sought to be withheld Aom pubhc &sclosme pursuunt to this paragrapit (i)is a trade secre or con 5deau ! or privileged ==nw=cial or finanmat informanlan; and (ii) if so, should be withheld Dom public disclosure.
4 (4) In malang the determination required by purugraph (bX3Xi) of this secuen, the Commission will
~
' con.wier:
! (i) Whether the information has been held m confidence by P owner,
. - -- _ . - . . - - _ ~ _ - .- _- _ - ~ . - .
4 Attachmea i i 10 CFR Sections Imtscted ' l i
l (ii) Whether the information is of a type customarily held in confidence by its oner and whether thereis a rationalbasis therefor, (iii) Whether the information was transmined to and recchid by the Commission in confidence; (iv) Whether the information is available in public sourms; (v) Whether public disclosure of the infornation sought to be withheld is likely to cause suharamint harm to the competitiw position of the owner of the inforuution, taking into account the value of the information to the om.er, the amount of effort or money, if any, expended by the owner in developing the infornation; and the case or dfticulty with which the information could be properly acquired er dupliated by others.
650.9 Cosspleteness a.ed accurney of laformation.
(a) Information provided to the Commission by an applicant for a license or by a limasee or information required by statute or by the Commission's regulations, orders, or license constions to be maintained by the applicant or the licenscc shall h: complete and accurate in all material respects.
550,7 Employee pihi (a) Discrimmation by a Commission l'oensee, an applicant for a Commission license, or a contractor or subcontractor of a Comnussion licensee or applicant against an employce fer engaging in certain protected acthities is pmhibited. Discrimmation includes discharr,e and other actions that relate to compensation, terms, conditions, or privileges of employment. The protected activities are established in section 211 of the Energy Reorganization Act of 1974, as ==aadad and in general are related to the admini*ation or enforcement of a requurment imposed under the Atomic Energy Act or the Energy Reorganization Act.
(f) No agreement affecting the compensation, terms, conditions, or privileges of employment,
- including an agreement to settle a complaint filed by an employee with the Department oflabor pursuant to section 211 of the Energy Reorganization Act of 1974, as amended, any contain any I prmision whio would prohibit, restrict, or otherwise discourage an employee from participating in protected activity as defined in paragraph (a)(1) of this section including, but not limited to, prmid'cg t
- information to the NRC or to his or her employer on potential violations or other matters within NRC's regulatory responsibilities.
i i
Attachment 2
, Judge's Discussi:n and Findings in Discrimination case 95 ERA-005
- e httpl/www.oalj del gov /public/wblowcr/decsn/95cra05ahtm The initial threshold in proving his case is easily met by the Complainant. His position as a member of the ISEG was required by the licensing-basis that allowed Niagara Mohawk-to operate Unit No. 2. This unit was created solely for the purpose of-discovering and discussing potential safety problems.-The name of the group itself recognizes its independence and purpose. To take adverse action against a member of the group for performing his job is the prototypical action protected by the statute. Such action would be interference with the basis on which the Respondent's license-pas granted, There is no dispute that the Respondent was aware of the Complainant's safety complaints. In fact, the Respondent-had a procedure for dealing with these complaints. The PR and procedure recognize the importance of safety issues raised by members of the ISEG. The history of the Asspondent's action taken in response to the Complainant's PR on the RHR system in 1993 are well documented and verified by all witnesses.
That the Respondent took adverse action against the Complainant is also not in dispute. He was terminated by the Respondent in 1994.
The Complainant's explanation of why he was terminated supports his contention that his persistence in pursuing his safety complaints was the reason for the adverse action. The PR filed in 1991 is by itself proof of such action. The Complainant's continued pursuit of this safety problem was supported by his immediate supervisor Jim Spadafore.
The Complainant relates in detail a discussion he had with Mr. Abbott as a result of his persistence. This confrontation in which the Complainant was threatened with termination if he did not drop tne complaint is not denied by the Respondent. Mr. Abbott merely stated he does not recall any such confrontation; this cannot be considered a denial. The action taken against the Respondent starting after he again raised essentially the same issue in 1994 indicates a direct link ,
between the warning and the termination action. )
m . ., ,
Lw
- 3 Attachment 2 Judge's Discussi:n and Findings in Discrimination case 95. ERA 005
- /- http //wwwoalj dol sm/public/mblow er/dec$nHera05a htm These actions constitute proof of a prima facie case by the Complainant. The burden therefore shifts to the Respondent.
The Respondent's counter argument is that the termination was motivated by a nondiscriminatiny action. In support of this tho Respondent stated that there was a general downsizing called rightsizing that took place in 1993-1994 in an effort to streamline the 'ility and make it competitive with others in the power F ..sess.
The fact that a general downsizing took place in the years 1993-1994 is not in dispute.
According-to the published-criteria the targeted group consists of employees whose performance evaluations were in the lower 40%. In 1993-1994 the goal was to reduce the number of nuclear engineers. If an employee was not in the lower 40% he was not in danger of termination.
The evidence establishes that the Complainant was repeatedly told that he was not in the targeted group. Any time he asked any of his superiors he was told he was not in jeopardy. No one ever told him he was in this group.
The Respondent counters with several arguments. They say that the Complainant was in the lowar 40% and was terminated strictly in accordance with the stated criteria.
A second not wholly consistent position is that there were other nonpublished criteria that justified the firing of the Complainant.
The (U;st of these arguments is based on performance evaluatier that shows the Complainant in the lower 40%.
These evaluations were prepared during the last stage of the downsizing. There is no indication that they were ever communicated to the complainant. They also include different handwriting. Most importantly they are totally inconsistent.with the verbal assurances given to the Complainant.
The document in-question is RX6. A close look shows that'there'is no indication that this document was communicated'te the1C omplainant or to his immediate supervisor.-It includes the statement that the 9osition is not being right sized.
- n. , ., ,
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Attachment 2 Judge's Discussi:n and Findings in Discrimination case 95. ERA-005 http //www calj dal gov /rublic/wblower/decstv95cra05a htm The record is consistent in showing that the Complainant was told he was not in the lower 40% of the rankings. (TR 61, 62, 126). The question remaining in whether there is any other legitimate reason for terminating the Complainant.
The Complainant received a letter from Mr. Sylvia dated March 15, 1994. (CX 11). Mr. Sylvia confirmed that the Complainant was not in the lower 40%. He stated the termination was due to the Complainant being included in an ISEG rotation. It noted that the decision to rotate employees was made after the downsizing was in progress.
The Complainant received another explanation from Kathy Mills, a member of the Respondent's Human Resources Department. This letter said the Employee was being terminated because his position has been abolished.
Ultimately the question in this case is one of credibility. The Complainant has shown that he raised important safety issues with which the Respondent disagreed. As a result he was threatened with loss of his position. The Respondent doesn't deny this, but merely states he can't recall the conversation. The complainant has shown that he was repeatedly assured he was not in the group eligible for termination. The testimony of all vitnesses confirms this position.
The Respondent, on the other hand, has not shown why the Complainant was terminated. They have suggester several reasons, none of which is supported by the evidence. The record shows there was no rotation plan for ISEG engineers.
There is also no evidence that the Complainant's job was abolished. The only performance evaluation showing the Complainant is in the lower 40% for 1994 is of no value because of its lack of consistency with other evidence.
Based on the above the Complainant has proved his case and is entitled to damages.
n...,,
m
\J 7 M!JGA,t.A '"
M eblCHAWK
. wwpu monmu powen compourxwune at sow r. c o sox ss. e.tKMNG. NY 0093nELEPHONE (MN2ss2
- oc ve V President
- March 15,1994 Robert T. Norway 6
m ampumne
Dear Bob:
I asked Jerry Krueger, Director HRD Nuclear, to assist me in reviewing the concerns expressed in your letter dated February 23,1994.
Indeed the inidal evaluation made by Jim Spedafore did not place you on the_ list of employees to be assessed by the Review Board process, nor was your position abolished as a result of the staff reductions within the ISEG group.
However, in a subsequent Senior Management planning session, a decision was made to rotate members of the ISEO group on a periodic basis. 'Ihis notation process would provide developmani opportunities, as well as bring new perspectives to the ISEO group.
As a result of this change, you were included in the group to be reviewed. As further explanation, your assessment worksheet indicated that your inclusion in the group to be reviewed was due to the decision to rotate ISEG positions.
As part of the Review Board process, another employee was selected for placement into .
the ISEG group. Unfortunately, the Board was unable to match your experience and background to displace a lesser quallfled employee, which resulted in your being placed in the transition program.
- In reviewing the circumstances outlined above, I have concluded the rightsizing process was followed, even though the decision was made to rotate members after the initial process had begun.
I trust this will provide satisfactory explanation to your concems.
Sincerely, B. Ralph S[via Executive Vice President Nuclear BRS/bwr z 1
ATTACHMENT f f 1 ,,
NRC ENFORCEME:NT CONFERENCE EMPLOYEE DISCHARGE l
. May 10,1996 l Niagara Mohawk Presentation l
b
AGENDA :
Introduction ................... B. R. Sylvia Status of the Case . . . . . . . . . . . . . . . . B. R. Sylvia Rightsizing Process . . . . . . . . . . . . . . . K. M. Miles Facts of the Case . . . . . . . . . . . . . . . . C. D. Terry Discussion of Findings of C. D terry / .
the Administrative Law Judge . . . . . . . . R. B. Abbott Climate for Raising Safety Issues ................... R. A. Hall Corrective Actions . . . . . . . . . . . . . . . R. B. Abbott Enforcement History . . . . . . . . . . . . . . B. R. Sylvia Closing Remarks . . . . . . . . . . . . . . . . B. R. Sylvia l
1 1
- , - _ _ _ . ,_ _ , _ - . . . _ . _ . _ . . . _ . _ , _ . -~.
FACTS OF THE CASE
- Mr. Norway was hired in 1982 as a startup engineer
- Joined ISEG in 1989; was one of 9 individuals in group
- Duties identical to other ISEG engineers ;
- Investigation
- Identify Issues
- Evaluation
- Issue prs /DERs
- Rightsizing program began in 1993
- Eliminate 10% of all positions
- Lower ranked 20% ofindividuals on a site basis identified for consideration
- In 1993, Mr. Norway was ranked in bottom 20% of group i
- Considered in rightsizing pool l
- Retained
- In 1994, a second round of rightsizing was begun I
- Eliminate 20% of all positions l
- Lower ranked 40% ofindividuals on a site basis identified for consideration 4
. ,..---..m.- , -- - - - - - . - - - .
FACTS OF TITE CASE (cont'd)
APPLICATION OF PROCESS TO ISEG Unit 2 Technical Specification requirement for 5 degreed engineers in ISEG would be satisfied
'* Supervisor position would be counted against degreed engineer requirement Three individuals were technicians and did not meet the degree requirements for retention in ISEG
'* One engineer's position would have to be eliminated r* Supervisor evaluated all engineers and selected three for consideration by the review process
- Supervisor informed Norway that he was submitted for rotation (non-specific) only Supervisor submitted Board evaluation forms - noting Norway ranked in lower 40%
'* Review panel considered all candidates separately
- Candidates given opportunity to provide feedback for Board's consideration (Norway did so)
- Secret ballot
- Selected Norway for transition r . . . - , -. -. . _ _
FINDINGS OF THE ADMINISTRATIVE LAW .TUDGE
- Agree that Mr. Norway was a protected employee
- Mr. Norway, as well as all other ISEG members, was directed by management to raise and evaluate safety issues and all did so e Persistence and dogged pursuit ofissues are positive attributes for ISEG
'* Four issues discussed in Judge's decision:
- 1991 PR
+ 1993 DER e Evaluation of Operating Experience reviews a Containment Spray Systems - repeated safety evaluations a* Mr. Norway was not threatened with termination by Mr. Abbott
'* Mr. Norway's termination process was non-discriminatory
- 1993 DER was not a consideration of Board; senior managers not aware of DER
- Notified of consideration for transition
- Feedback form submitted by Norway
- Norway's supervisor actions unfortunate
- Board evaluation based on performance
- Common for Board to conclude differently than supervisors
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